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2016 DIGILAW 949 (RAJ)

Shashi Goyal v. Mohan Lal Agarwal

2016-07-06

SANGEET LODHA

body2016
JUDGMENT : Sangeet Lodha, J. This revision petition is directed against order dated 14.2.2014 of the Additional District Judge No. 1, Sri Ganganagar in Civil Suit No. 55/2013, whereby an application preferred by the petitioner-defendant under Order 7, Rule 11 C.P.C., seeking rejection of the plaint, has been dismissed. 2. The respondent-plaintiff filed a suit seeking cancellation of gift deed dated 4.11.2006 alleged to have been executed by him in favour of the petitioner-defendant, under duress. The suit for cancellation of the gift deed dated 4.11.2006 was filed by the respondent-plaintiff on 30.5.2013, stating that he came to know about the factum of execution of the gift: deed in the month of April, 2010 and thereafter, on 9.3.2011, on refusal of the petitioner-defendant to get the gift deed cancelled, the cause of action accrued and accordingly, he filed a suit for cancellation of gift deed on 22.3.2011, which was withdrawn with liberty to file fresh on 31.7.2012. The plaintiff claimed the suit filed to be within limitation stating that the time during which the former suit was pending before the Court has to be excluded in terms of provisions of Section 14(3) of the Limitation Act, 1963 (for short "the Act") for the purpose of computing the period of limitation. 3. The petitioner-defendant preferred an application under Order 7, Rule 11 (d) C.P.C., seeking rejection of the plaint on the ground that the cause of action for filing the suit had accrued to the petitioner in the month of April, 2010 when he came to know about the execution of the gift deed and therefore, the suit filed on 30.5.2013 is barred by limitation. 4. The application has been rejected by the Court below observing that the question of limitation is a mixed question of law and fact which shall be decided after framing the issue, on the basis of the evidence to be led by the parties. Hence, this petition. 5. Learned Counsel appearing for the petitioner contended that the suit filed after a lapse of three years from the date of knowledge of the execution of the gift deed is apparently barred by limitation. Learned Counsel submitted that the petitioner cannot claim exclusion of time during which the former suit filed by the petitioner remained pending inasmuch as, for claiming the benefits under Section 14 (3), the requirement of Section 14 (1) has to be satisfied. Learned Counsel submitted that the petitioner cannot claim exclusion of time during which the former suit filed by the petitioner remained pending inasmuch as, for claiming the benefits under Section 14 (3), the requirement of Section 14 (1) has to be satisfied. Learned Counsel submitted that unless and until it is specifically pleaded that the plaintiff was pursuing the former suit with due diligence and good faith, the question of exclusion of the period for the purpose of computation of limitation as claimed, does not arise. Learned Counsel submitted that Section 14 requires that former proceedings should have been prosecuted in good faith and with due diligence and therefore, unless the essential pre requisites for attracting Section 14 are satisfied, exclusion of time cannot be permitted. In support of the contention, learned Counsel has relied upon a decision of the Hon'ble Supreme Court in the matter of Consolidated Engineering Enterprises v. Principal Secretary, Irrigation Department, (2008) 7 SCC 169 . Learned Counsel would submit that the initial burden of bringing the case within the Section lay on the plaintiff and thus, in absence of the pleadings in this regard, the plaint is liable to be rejected as barred by limitation. In support of the contention, learned Counsel has relied upon a decision of the Hon'ble Supreme Court in the matter of Madhavrao Narayanrao Patwardhan v. Ram Krishna Govind Bhanu & Ors., AIR 1958 SC 767 . 6. I have considered the submissions of the learned Counsel and perused the material on record. 7. It is settled law that while deciding an application for rejection of the; plaint under Order 7, Rule 11 (d), the Court is not competent to go into correctness or otherwise of the allegations contained in the plaint. The plaint can only be rejected if the statement in the plaint without any addition or subtraction appears to be barred by law. 8. There cannot be any quarrel with the proposition that unless and until the essential pre-requisites envisaged under Section 14 of the Act are satisfied, the protection of the exclusion of the period covered by the former litigation shall not be available to the litigant. Further, the burden of bringing his case within the Section 14, will lay on the plaintiff and unless the initial burden is discharged by him, the burden to show the contrary will not shift on the defendant. Further, the burden of bringing his case within the Section 14, will lay on the plaintiff and unless the initial burden is discharged by him, the burden to show the contrary will not shift on the defendant. But then, the fact remains that the question with regard to the due diligence and good faith in prosecution of the former litigation has to be decided on the basis of the facts of each case. Thus, the contentious issue between the parties regarding the plaintiffs entitlement for exclusion of the period during which the earlier suit remained pending, which is certainly a mixed question of law and fact needs to be decided by the Court on the basis of the evidence to be led by the parties. 9. In the considered opinion of this Court, the petitioner has claimed exclusion of the period during which the former suit remained pending before the Court on the basis of certains facts pleaded and from the statement in the plaint, no inference can be drawn that the suit is barred by limitation and therefore, the plaint cannot be rejected by invoking the provisions of Order 7, Rule 11. 10. For the aforementioned reasons, the order impugned passed by the Court below does not suffer from illegality, material irregularity or jurisdictional error so as to warrant interference by this Court in exercise of its revision jurisdiction. 11. In the result, the petition fails, it is hereby dismissed. No order as to costs.